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Westchester Med. Ctr. v New S. Ins. Co.
2013 NY Slip Op 52085(U) [41 Misc 3d 145(A)]
Decided on December 12, 2013
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 12, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., LaSALLE and MARANO, JJ
.

Westchester Medical Center as Assignee of GERARD R. BROWN, Appellant, —

against

New South Insurance Company, Respondent.


Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated September 26, 2011. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment.


ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the District Court as denied its motion for summary judgment.

The record shows that the District Court considered both defendant's proof that defendant had not received requested verification from plaintiff and an affidavit from plaintiff which asserts that material responsive to the verification request had been sent to defendant. Thus, plaintiff failed to establish the absence of a material issue of fact. As a result, the District Court properly determined that plaintiff was not entitled to summary judgment. We decline defendant's request to search the record and award it summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: December 12, 2013